In December 2016, the Administrative Appeals Office (“AAO”) of the U.S.
Citizenship and Immigration Services’ (“USCIS”) issued Matter of Dhanasar (“Dhanasar”),
[1]
a precedent decision issuing a new standard for National Interest Waiver
(“NIW”) green card petitions for the first time in 18 years.

Typically, a petition in the employment-based second preference immigrant
visa category must be accompanied by a certified labor certification from
the U.S. Department of Labor. However, the law allows the labor
certification requirement to be waived if it is in the national interest.
[2]

Dhanasar
set forth the following guidelines for determining when it is in the
national interest to waive the labor certification requirement:

The foreign national’s proposed endeavor has both substantial merit and
national importance;

The foreign national is well positioned to advance the proposed
endeavor; and

On balance, it would benefit the United States to waive the
requirements of a job offer and thus of a labor certification.
[3]

In setting this framework, the AAO rescinded Matter of New York State Dep’t of Transportation, 22 I&N Dec.
215 (INS Acting Assoc. Comm’r 1998) (“NYSDOT”), which provided the
previous framework for adjudicating national interest waivers.

Part of the impetus of rescinding NYSDOT was that the adjudication
framework had “proven particularly ill-suited for USCIS to evaluate
petitions from self-employed individuals, such as entrepreneurs.”
[4]
In other words, part of the justification for promulgating Dhanasar was because NYSDOT failed to provide USCIS
adjudicators with a framework to approve NIW petitions for entrepreneurs.

Given that entrepreneur NIW adjudications constituted part of the impetus
for Dhanasar, this article seeks to assess how Dhanasar
has actually impacted entrepreneurs filing NIW green card petitions. To do
this, we researched AAO NIW entrepreneur decisions issued since December
2016. We found two non-precedent decisions, both of which were denials.
Because it is difficult to draw broad conclusions with such a small sample
of cases, the following discusses the evidence presented by the petitioners
and how the AAO treated that evidence.

The entrepreneur petitioned for an NIW in connection with his engineering
simulation business. His business would provide engineering consulting with
respect to aerospace vehicles and payloads. USCIS initially denied the
entrepreneur’s petition. On appeal, the AAO affirmed the denial, finding
the following with respect to the Dhanasar factors:

1. Substantial Merit and National Importance

To demonstrate substantial merit, the entrepreneur provided a business plan
for his company, along with two letters from potential clients who were
interested in purchasing the entrepreneur’s services. Looking first at the
business plan, the plan provided details with respect to the types of
clients the company would target, the types of services the company would
provide, and the software and technology the company would use. With
respect to the client letters, the potential clients affirmed that the
entrepreneur had worked with the entrepreneur previously, and that they
would be interested in purchasing additional services. In providing these
documents, the AAO found that the entrepreneur met the standard for
substantial merit.

To demonstrate national importance, the entrepreneur asserted:

[My] business has significant potential to employ U.S. workers. After one
year in business, I intend to hire at least one additional employee.

However, the record did not include evidence that the company had such
potential, or that the company would offer “substantial positive economic
effects for the nation.” In addition, the AAO determined that the
entrepreneur had not provided evidence that his company would have a
broader impact on the industries in which he works. Instead, the AAO found
that the impact was limited to the potential customers that might retain
the entrepreneur.

For these reasons, the AAO found that the entrepreneur had not demonstrated
national importance.

2. Well Positioned to Advance the Proposed Endeavor

To meet this requirement, the petitioner provided his resume, academic and
professional certification records, documentation of a scholarship he
received, letters discussing his previous work, a business plan, financial
forecasts for the company, and a bank statement showing over $20,000 in
funds for the business. The AAO found that this did not sufficiently
demonstrate that the entrepreneur was well positioned to advance the
proposed endeavor.

First, the AAO noted that his previous research was not clearly related to
the proposed endeavor of the company. Additionally, the AAO could not find
“sufficient interest from potential customers, users, investors, or other
relevant entities” to demonstrate that the entrepreneur was well positioned
to execute the proposed endeavor.

In essence the entrepreneur did not show that his previous work was
sufficiently related to the proposed endeavor, or that he had generated
enough interest from the industry to indicate that he was well positioned
to advance the endeavor. Therefore, USCIS found that the entrepreneur had
not met his burden.

3. Balancing Factors to Determine Waiver’s Benefit to the United States

Because the entrepreneur had not demonstrated national importance or that
he was well positioned to advance the proposed endeavor, the AAO did not
determine whether waiving the labor certification requirement would benefit
the United States.

In this case, the entrepreneur sought to purchase personal electronics from
U.S. distributors and export them to markets outside the United States. In
a prior decision, the AAO found that while the entrepreneur had
demonstrated substantial merit and that the entrepreneur was well
positioned to advance the endeavor, the entrepreneur had not sufficiently
demonstrated national importance. This decision concerned a request for
reconsideration of that initial denial, and was thus exclusively concerned
with whether the entrepreneur’s proposed endeavor had national importance.

To demonstrate national importance, the entrepreneur provided a business
plan, including company hiring, growth projections, and industry analysis.
According to the business plan, between 2018 and 2021, the company’s net
revenue was expected to grow from $471,104 to $1,155,772. During the same
period, the company’s payroll expenses were expected to grow from $521,850
to $928,369.

However, the entrepreneur did not explain how this growth would offer substantial economic benefit to the region where it operated or to
the nation as a whole. Nor did the entrepreneur demonstrate how the added
jobs would “significantly impact employment levels” at the company’s
locations. Additionally, the AAO found that the entrepreneur had not
provided evidence, other than his own statement, that his exports of
American goods would impact U.S. company market shares in foreign
countries, or that the company would produce sufficient shipping volume to
benefit the U.S. shipping industry.

Given the above, the AAO dismissed the entrepreneur’s request for
reconsideration.

Key Takeaways

In both cases above, the entrepreneurs tried to demonstrate substantial
national importance based on the economic benefit from their companies.
However, the AAO focused heavily on the national importance needing to be
“substantial,” and therefore interpreted Dhanasar to mean that the
economic impact from the endeavor on the nation or region must also be
substantial to meet the substantial national importance test.

Given this, entrepreneurs with new start-ups are not well suited to argue
economic benefit as having national importance. Rather, it appears that the
AAO would be more likely to approve a case arguing that the technology or
service provided by the entrepreneur’s company is likely to generate
substantial interest or impact a substantial need of the nation or
industry.

Entrepreneurs should also clearly demonstrate how their past
accomplishments directly related to the proposed endeavor of their company.
While this may exceed the preponderance of the evidence burden of proof,
the AAO appears to want clear proof that the entrepreneur’s past experience
relates to what the entrepreneur intends to do in the future.

While two cases alone cannot indicate strong trends, it appears that so far Dhanasar has not drastically lowered the difficulty for
entrepreneurs in obtaining National Interest Waiver green cards.

About The Author

David Wilks is a business immigration attorney at Miller Mayer LLP (http://www.millermayer.com) in Ithaca, NY. He has helped countless entrepreneurs and new businesses meet their immigration goals. A graduate of Cornell Law School, he currently serves as national vice chair of the American Immigration Lawyers Association (AILA)’s USCIS Vermont Service Center liaison committee. He is a member of the US Alliance for International Entrepreneurs (USAIE) (http://usaie.org), which provides comprehensive services and advice to international entrepreneurs.

Brooke Ireland is an immigration assistant at Miller Mayer. She graduated with a bachelor’s of science degree from Ithaca College, and has multiple years of experience working in the immigration field.

Stephen Yale-Loehr is co-author of Immigration Law and Procedure, the leading 21-volume immigration law treatise, published by LexisNexis. He is also Professor of Immigration Practice at Cornell Law School, and is of counsel at Miller Mayer, where he advises entrepreneurs, investors, and businesses. He cofounded USAIE, and chairs AILA’s business immigration committee.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.